Mandatory reporting of sexual abuse under the Sexual Offences Act and the ‘best interests of the child’

David McQuoid-Mason, BComm, LLB, LLM, PhD

Advocate of the High Court of
South Africa, Fellow of the University of KwaZulu-Natal, Acting
Director, Centre for Socio-Legal Studies, University of KwaZulu-Natal,
Durban

Corresponding author: D McQuoid-Mason (mcquoidm@ukzn.ac.za)

It may not be necessary for doctors to report cases of consensual
sexual penetration in terms of the Criminal Law (Sexual Offences Act
and Related Matters) Amendment Act, where the children involved are
under16 years old and their age difference is not more than 2 years, if
such a requirement is unconstitutional. The mandatory reporting
provision regarding such conduct may be unconstitutional if it violates
the constitutional ‘best interests of the child’ principle and
unreasonably and unjustifiably limits the constitutional rights of
children to bodily and psychological integrity and privacy. It may also
undermine the provisions of the Choice on Termination of Pregnancy Act
regarding terminations of pregnancy by girl children, the
confidentiality provisions of the Children’s Act regarding the
distribution of condoms and contraceptives to sexually active children
and their testing for HIV, and the efficacy of the Child Justice Act
which aims to divert children away from the criminal justice system. It
will also be unnecessary to report such conduct in terms of the
Children’s Act if the doctor concerned does not believe on reasonable
grounds that child abuse has occurred and the doctor is acting in the
‘best interests of the child’ as required by the Constitution and the
Children’s Act.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act1
(hereafter referred to as the Sexual Offences Act) provides that in
respect of statutory sexual assault – but not in respect of
consensual sexual penetration – it is a defence that both the
accused were children under the age of 16 years and the age difference
between them was not more than 2 years at the time of the alleged
offence. The question arises whether the requirement that consensual
sexual penetration between children under the age of 16 years where the
age difference between them was not more than 2 years, is
unconstitutional – given that it undermines the ‘best
interests of the child’ principle and several other fundamental
rights in the Constitution,2 as well as number of statutes designed to protect children, such as the Choice on Termination of Pregnancy Act3 (hereafter referred to as the Choice Act), the Children’s Act4 and the Child Justice Act.5
If the provision is unconstitutional it should be amended to provide
the same defence as is provided in the case of consensual sexual
assault where both children were under the age of 16 years and the age
difference between them was not more than 2 years.6

Reasons for not reporting cases of consensual sexual
penetration involving children under 16 years where the age difference between them is not more than 2 years

It is submitted that there are a number of good reasons why doctors
may be able to avoid criminal liability in terms of the Sexual Offences
Act1 for not reporting cases
of consensual sexual penetration where the children involved are under
16 years old and their age difference is not more than 2 years. For
instance, the criminalisation of such conduct involving young
adolescents may violate the constitutional imperative of the
‘best interests of the child’ which applies to doctors and
everyone else.7 It may also
be an unreasonable and unjustifiable limitation of the constitutional
rights of children to bodily and psychological integrity8 and privacy.9
Imposing the reporting obligation on doctors consulted for terminations
of pregnancy, where young adolescents have engaged in consensual sexual
penetration, would undermine the purpose of the Choice Act which is to
provide women (including young girls) with ‘early, safe and legal
termination of pregnancy’, and to prevent them seeking
back-street abortions.10 Such an obligation may also undermine the provisions of the Children’s Act4 dealing with the distribution of condoms to sexually active children,11 and those dealing with the prescription of contraceptives to sexually active girl children,12 both of which guarantee such children confidentiality.13 It may also undermine the provisions of the Children’s Act4 dealing with HIV testing of sexually active children14 which guarantee such children confidentiality.15 The duty to report will also undermine the efficacy of the Child Justice Act5 which aims to divert children away from the criminal justice system.16 In any event, it may be unnecessary to report such conduct in terms of the Children’s Act4
if the doctor concerned does not believe on reasonable grounds that
child abuse has occurred, and such doctor is acting in the ‘best
interests of the child’ as is required by the Constitution7 and the Children’s Act.17

Is the mandatory reporting of
consensual sexual penetration between children under 16 years where
their age difference is less than 2 years a violation of the
constitutional imperative of the ‘best interests of the
child’?

The Constitution states: ‘A child’s best interests are
of paramount importance in every matter concerning the child’.7
The Constitution does not define the child’s ‘best
interests’ but these have been defined in the Children’s
Act.17 In terms of the
Children’s Act some of the factors that should be taken into
account when applying standard of the ‘best interests of the
child’ are: (i) the
nature of the relationship between ‘the child and any other
care-giver or person relevant in those circumstances’; (ii)
the child’s age, maturity and stage of development, gender,
background and any other relevant characteristic of the child; (iii) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (iv)
the need to protect the child from any physical or psychological harm
that may be caused by subjecting the child to maltreatment, abuse,
neglect, exploitation or degradation or exposing the child to violence
or exploitation or other harmful behaviour; and (v) deciding which action would avoid or minimise further legal or administrative proceedings in relation to the child.17
It is submitted that criminalising consensual sexual penetration
between adolescents where both are children under 16 years and their
age difference is not more than 2 years at the time of the alleged
offence, and requiring doctors to report such conduct to the
authorities, violates most of the above-listed factors affecting the
‘best interests of the child’ standard and may be
considered unconstitutional.

In the light of the above, the undesirable consequences of the duty
to report in such circumstances which may result in a criminal
prosecution, subject to the discretion of the National Director of
Public Prosecutions,18 are (i)
possible harm to the relationship between the doctor as a
‘relevant person’ regarding the termination of the
pregnancy and the child concerned; (ii)
a failure to take into account the children’s age, maturity and
stage of development, gender, background and any other relevant
characteristics; (iii)
possible harm to the children’s physical and emotional security
and an adverse effect on their intellectual, emotional, social and
cultural development; (iv)
physical or psychological harm caused to the children by exposing them
to degradation or other harmful behaviour when they are interrogated by
the police or other role-players in the criminal justice system; and (v) exposure of the children to legal or administrative proceedings which the Children’s Act17
states should be avoided. In short, it can be argued that the
criminalisation of, and duty to report, consensual sexual penetration
between adolescents where both are children under the age of 16 years
and the age difference between them is not more than 2 years at the
time of the alleged offence are unconstitutional because they violate
the ‘best interests of the child’ principle.

Is the mandatory reporting of
consensual sexual penetration between children under 16 years where
their age difference is less than 2 years an unreasonable and
unjustifiable limitation of their constitutional right to bodily and
psychological integrity?

Children are entitled to the protection of the fundamental rights in
the Constitution that apply to everyone else. Criminalising consensual
sexual penetration between adolescents where they are both are under 16
years and the age difference between them is not more than 2 years at
the time of the alleged offence is prima facie a violation of the
children’s constitutional right to bodily and psychological
integrity.8 The Constitution
states that fundamental rights in the Constitution may be limited only
in terms of a law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic
society. When considering whether the limitation is reasonable and
justifiable the following factors must be taken into account: (i) the nature of the right; (ii) how important it is to limit the right; (iii) the nature of the limitation and its extent; (iv) the relationship between the limitation and its purpose; and (v) whether there are less restrictive means to achieve the purpose.18

The criminalisation of consensual sexual penetration between
adolescents where both are under the age of 16 years and the age
difference between them is not more than 2 years at the time of the
alleged offence in the Sexual Offences Act1 is a law of general application because it applies to anyone who engages in sexual penetration with a child.19
The nature of right that is being limited is the right of children to
bodily and psychological integrity by denying them freedom of choice to
explore their sexuality20 by
engaging in consensual sexual penetration with their peers who are less
than 2 years older than them. The limitation is aggravated by the fact
that ‘sexual penetration’ is much more widely defined than
the common-law crime of rape which required penile penetration of the
vagina.21 In terms of the
Sexual Offences Act any form of sexual penetration – not just by
the penis into the vagina – but also by other parts of the body
such as fingers or the tongue or penetration by objects ‘into or
beyond the genital organs or anus of another person’ qualifies as
‘sexual penetration’.22
This means that adolescent sexual exploration involving penetration of
the genital organs or anus by other parts of the body or by objects,
without involving penile penetration of the vagina, could result in
criminal prosecution. The importance of the limitation of the right is
supposedly to reduce the incidence of sexual penetration of children;
however whether it is desirable to criminalise consensual sexual
penetration between children who are under 16 years and with a less
than 2-year age difference is debatable, considering that large numbers
of teenage children are sexually active, as is recognised in the Choice
on Termination of Pregnancy Act10 and the Children’s Act.11,12

The nature of the limitation and its extent are such that large
numbers of teenage children who are experimenting with consensual
sexual penetration could become psychologically harmed by being
subjected to prosecution at the discretion of the National Director of
Public Prosecutions – even though probation officers and
prosecutors may use the diversion provisions of the Child Justice Act.5
The relationship between the limitation and its purpose seems to be
that by criminalising consensual sexual penetration between children
the latter will be less likely to engage in sexual activities that
include penetration. As previously mentioned, given that the Sexual
Offences Act1 now defines
sexual penetration much more widely than under the common law it is
most unlikely that the purpose of the limitation will be achieved.
There are less restrictive means of achieving the same objective by
ensuring that children receive responsible and responsive sex education
in schools and only criminalising consensual sexual penetration where
the age difference between the children under 16 years is more than 2
years or the perpetrator is in a position of power or control over the
other child. Proper sex education may well be as effective and much
less harmful than the criminal provisions of the Sexual Offences Act.1

Finally, to pass muster as a constitutional limitation on the rights
of children to bodily and psychological integrity the provisions of the
Sexual Offences Act1 must be
reasonable and justifiable in an open and democratic society. An
example of an open and democratic society that has influenced
constitutional law developments in South Africa is Canada, where the
Canadian Criminal Code23 provides that 12- or 13-year-olds can consent to sexual activity with a person not more than 2 years older than them24 and a 14- or 15-year-old can consent to sexual activity with a partner who is no more than 5 years older than them.25
It can be argued therefore that section 15 of the Act does not satisfy
the reasonable and justifiable test of the Constitution. If this
argument holds water, doctors do not have to report activities that
have been unconstitutionally criminalised by the Sexual Offences Act.1
In any event it is submitted that section 56 of the Sexual Offences Act
should be amended to provide a similar defence to that in section
56(2)(b) of the Act regarding statutory sexual assault in circumstances
where both the accused are children under the age of 16 years and the
age difference between them was not more than 2 years at the time of
the alleged offence. In the meantime doctors should be guided by the
‘best interests of the child’ principle as required by the
Constitution.7

Is the mandatory reporting of
consensual sexual penetration between children under 16 years where
their age difference is less than 2 years an unreasonable and
unjustifiable limitation of their constitutional right to privacy?

The right to privacy is protected by the Constitution,9 the National Health Act, 26 the Children’s Act11,12 and the common law.27
A breach of confidentiality and the right to privacy of children may
result in legal action unless there is a valid defence such as consent,
a court order, a statutory duty or a privileged occasion.28
Imposing a legal duty on doctors to report consensual sexual
penetration between adolescents where both children are under 16 years
and the age difference between them is not more than 2 years at the
time of the alleged offence is prima facie a violation of the
children’s constitutional right to privacy.9
Once again it would have to be shown that the imposition of a duty that
limits the right to privacy of such children is reasonable and
justifiable in an open and democratic society. If a duty imposed by
statute is unconstitutional there is no duty on doctors or anyone else
to comply with it.

The arguments concerning the factors that must be taken into account
in determining whether the limitation is reasonable and justifiable are
the same as those discussed in relation to the right to bodily and
psychological integrity. The nature of right that is being limited is
the right of children to bodily and psychological privacy by requiring
doctors to report their penetrative sexual conduct to the police. The
importance of the limitation of the right is supposedly to ensure that
all incidents of sexual penetration of children are reported to the
authorities. However whether criminalising the failure of doctors to
report consensual sexual penetration between children who are under 16
years and with a less than 2 years age difference between them is
constitutional is open to question, particularly because the right to
privacy of children is specifically protected in other statutes
affecting the their sexuality such as the Choice Act29 and the Children’s Act.11,12

The nature of the limitation and its extent on the right to privacy
is such that if doctors are obliged to report the activities of
children engaged in consensual sexual penetration with their peers,
large numbers of teenage children may have their private sex lives
exposed to their parents in violation of the Constitution,2 the Choice Act29 and the Children’s Act.11,12
Such children would also have their private sexual conduct exposed to
police officers, probation officers and prosecutors if subjected to
prosecution at the discretion of the National Director of Public
Prosecutions – in spite of the limited safeguards in the
diversion provisions of the Child Justice Act.5
The relationship between the limitation and its purpose seems to assume
that, by requiring doctors to report consensual sexual penetration
between children who are peers, the incidence of such activities is
likely to be reduced. It is likely, however, that there is little
empirical evidence to confirm such an assumption. As previously
mentioned, a less restrictive method of achieving the same objective
may be to introduce proper sex education in all schools. This would
also enable doctors to maintain the confidence of their teenage
patients requiring assistance in sexually related matters without the
latter withholding information from their doctors because they fear
that their sexual activities may be reported to the authorities.

Imposing the reporting
obligation in terms of the Sexual Offences Act on doctors consulted for
terminations of pregnancy in cases where young adolescents have engaged
in consensual penetrative sex would undermine the purpose of the Choice
Act

The Choice Act10
recognises that children may be engaging in penetrative sex but does
not require such conduct to be reported to the authorities. The Choice
Act allows a female of any age to consent to a termination of pregnancy
without her parents or anyone else being informed.29
There is no requirement that the child’s pregnancy or the fact
that she has engaged in sexual intercourse be reported to the
authorities. The termination of pregnancy, however, must be reported to
the director general of health without disclosing the identity of the
female concerned.30
The Preamble to the Choice Act states that it is aimed at
‘affording every woman the right to choose whether to have an
early, safe and legal termination of pregnancy’.31
Thus the Choice Act accepts that young girls may fall pregnant and is
aimed at steering them away from back-street abortions. If girl
children thought that their pregnancies would be reported by the
doctors they consult, because they had had consensual penetrative sex
with someone, they would be reluctant to consult medical practitioners
and would resort to back-street abortions. Therefore imposing the
reporting obligation in terms of the Sexual Offences Act1
on doctors consulted for terminations of pregnancy in cases where young
adolescents under the age of 16 years have engaged in consensual
penetrative sex with boys less than 2 years older than them would
undermine the whole purpose of the Choice Act which is to encourage
safe and legal terminations of pregnancy. Such a result would not be in
the ‘best interests of the child’ and for this reason it is
submitted that doctors are not obliged to report such consensual sexual
conduct under the Sexual Offences Act.

Imposing the reporting obligation in terms of the Sexual
Offences Act on health professionals who are consulted by boys or girls
over 12 but under 16 years of age who want condoms because they are
engaging in consensual penetrative sex with other teenagers less than 2
years older than them undermines the purpose of the Children’s Act

The Children’s Act makes it an offence to refuse to sell or supply children over the age of 12 years with condoms.11
Imposing a reporting obligation on health professionals who are
consulted for the purpose of obtaining condoms by children over 12 but
under 16 years of age who are having consensual penetrative sexwith teenagers who are less than 2 years older than them may undermine the provisions of the Children’s Act.11 The Children’s Act guarantees such children confidentiality,13
and is aimed at preventing the unwanted pregnancies among girl children
and the spread of HIV infection among sexually active children
generally. It is submitted that it was not the intention of the
drafters of the Sexual Offences Act1
to discourage teenagers from accessing condoms in order to reduce the
risk of pregnancy or HIV infection. If this were to occur it would not
be in the ‘best interests’ of such children, and it is
submitted would entitle the health professionals concerned not to
report such consensual sexual penetration of the children as required
by the Sexual Offences Act.

Imposing the reporting obligation in terms of the Sexual
Offences Act on doctors who are consulted by girl children over 12 but
under 16 years of age who seek contraceptive assistance because they
are engaging in consensual penetrative sex with boys less than 2 years
older than them undermines the purpose of the Children’s Act and
the Choice Act

Imposing the reporting obligation on doctors who are consulted for
the purpose of contraception by a girl child over 12 but under 16 years
of age who is having consensual penetrative sexwith a boy who is less than 2 years older than her may also undermine the provisions of the Children’s Act4 dealing with the prescription of contraceptives to sexually active children.12 The Children’s Act guarantees such children confidentiality13 and is aimed at preventing teenage pregnancies to obviate the Choice Act3 being used for contraceptive purposes.31 It is submitted that it was not the intention of the drafters of the Sexual Offences Act1
to discourage young girls from seeking contraceptive advice in order to
reduce the risk of pregnancy. If this were to occur, it would not be in
the ‘best interests of the child’, in which case doctors
may legally refrain from reporting such consensual sexual conduct in
terms of the Sexual Offences Act.

Imposing the reporting
obligation in terms of the Sexual Offences Act on doctors who are
consulted for the purpose of an HIV test by children over 12 but under
16 years of age who are having consensual penetrative sex with persons
less than 2 years younger than them undermines the provisions of the
Children’s Actdealing with HIV testing of sexually active children which guarantee such children confidentiality

Imposing the reporting obligation in terms of the Sexual Offences
Act on doctors who are consulted for the purpose of an HIV test by
children over 12 but under 16 years of age who are having consensual
penetrative sex with persons less than 2 years younger than themundermines the provisions of the Children’s Act4 dealing with HIV testing of sexually active children14 which guarantee such children confidentiality.15 In
situations where it is in the ‘best interests’ of the
children concerned, the provisions in the Children’s Act are
clearly aimed at enabling children over 12 years to ascertain their HIV
status in order to allow them to obtain treatment and to take steps to
prevent spreading the disease, without their parents or the authorities
being notified. If in such situations there was a duty on doctors to
report the sexual conduct of the children seeking HIV tests to the
authorities, it would discourage such children from undergoing HIV
testing in situations when it was in their ‘best interest’
to do so. This would make the confidentiality provisions of the
Children’s Act11 meaningless. In any event, in terms of the Constitution,7 doctors
will not be obliged to report the sexual conduct of child patients
undergoing HIV tests to the authorities if they are satisfied that it
is not in the ‘best interests’ of such children.

Imposing the reporting obligation in terms of the Sexual
Offences Act on doctors who are consulted by young adolescents over 12
but under 16 years of age who are engaging in consensual penetrative
with persons less than 2 years older than them may adversely affect the
implementation of the Child Justice Act

Imposing the reporting obligation on doctors who are consulted by
young adolescents over the age of 12 but under the age of 16 years of
age who are engaging in consensual penetrative with persons less than 2
years older than them, to report such conduct to the authorities will
undermine the efficacy of the Child Justice Act16 which aims to divert children away from the criminal justice system.17 It
is submitted that it will not be in the ‘best interests’ of
the children concerned, nor in the ‘best interests’ of the
many other children in conflict with the law who require to be
accommodated in diversion programmes in terms of the Act, if large
numbers of cases are reported to the police. This is because if
thousands of cases of consensual sex between adolescents with less than
2 years age difference between them were to be reported to the
authorities annually, it is most unlikely that the already
overstretched probation services would able to provide the necessary
support and assistance to children who have come into conflict with the
law in this respect.

Should consensual penetrative
sex by teenagers over 12 but under 16 years of age with persons less
than 2 years older than them be reportable as ‘child abuse’
in terms of Children’s Amendment Act?

‘Child abuse’ may be defined as ‘maltreatment of
children which results in harm or the potential risk of harm to a
child, usually of a physical, emotional or sexual nature’.32 The Children’s Amendment Act33
imposes a legal duty on a number of individuals and professionals
including dentists, homeopaths, medical practitioners, midwives,
nurses, occupational therapists, physiotherapists, psychologists,
speech therapists and traditional health practitioners, who on
reasonable grounds conclude that a child has been physically injured,
sexually abused or deliberately neglected.34

The person making the report must have reasonable grounds for
concluding that the child has been physically or sexually abused or
deliberately neglected and is need of care and protection. Therefore,
if the doctor concerned does not conclude on reasonable grounds that
child abuse has occurred, he or she will not have to report such
conduct in terms of the Children’s Amendment Act,33
provided such doctor is acting in the ‘best interests of the
child’ as required by section 28(2) of the Constitution2 and section 9 of the Children’s Act.4

It is submitted that, as is the case in Canada,24
it may well be argued that where teenagers over 12 but under 16 years
of age have consensual penetrative sex with persons less than 2 years
olderthan them such conduct
does not constitute child sexual abuse and should not be criminalised
unless one of the children was in a position of power or control over
the other.

Conclusion

Strong arguments may be made that the requirement in the Sexual
Offences Act requiring doctors to report cases of consensual sexual
penetration, where the children involved are less than 16 years old and
their age difference is not more than 2 years, is unconstitutional. The
requirement violates the constitutional ‘best interests of the
child’ principle and unreasonably and unjustifiably limits the
constitutional rights of children to bodily and psychological integrity
and privacy. The requirement also undermines the provisions of the
Choice Act regarding terminations of pregnancy by girl children, the
confidentiality provisions of the Children’s Act regarding the
distribution of condoms and contraceptives to sexually active children
and their testing for HIV, and the efficacy of the Child Justice Act
which aims to divert children away from the criminal justice system.
Finally, it will be unnecessary for doctors to report such conduct in
terms of the Children’s Act if the doctor concerned does not
believe on reasonable grounds that child abuse has occurred and the
doctor is acting in the ‘best interests of the child’ as
required by the Constitution and the Children’s Act.